Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page1 of 29 14-4626 Berman v. Neo@Ogilvy LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2014 Argued: June 17, 2015 Decided: September 10, 2015 Docket No. 14-4626 - - - - - - - - - - - - - - - - - - - - - - DANIEL BERMAN, Plaintiff-Appellant, v. NEO@OGILVY LLC, WPP GROUP USA, INC., Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, JACOBS, and CALABRESI, Circuit Judges. Appeal from the December 8, 2014, judgment of the United States District Court for the Southern District of New York (Gregory H. Woods, District Judge), dismissing, for failure to state a claim on which relief can be granted, an employee s suit claiming that his discharge violated the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The District Court ruled that these provisions protect only employees discharged for reporting violations to the Securities and Exchange Commission and not those reporting violations only 1 CERTIFIED COPY ISSUED ON 09/10/2015
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page2 of 29 internally. See Berman v. Neo@Ogilvy LLC, No. 1:14-cv-523- GHW-SN, 2014 WL 6860583 (S.D.N.Y. Dec. 5, 2014). Reversed and remanded. Judge Jacobs dissents with a separate opinion. Alissa Pyrich, Jardim, Meisner & Susser, P.C., Florham Park, NJ (Bennet Susser, Richard S. Meisner, Jardim, Meisner & Susser, P.C., Florham Park, NJ, on the brief), for Appellant. Howard J. Rubin, Davis & Gilbert LLP, New York, NY (Jennifer Tafet Klausner, David J. Fisher, Davis & Gilbert LLP, New York, NY, on the brief), for Appellees. (William K. Shirey, Asst. Gen. Counsel, Washington, DC (Anne K. Small, Gen. Counsel, Michael A. Conley, Deputy Gen. Counsel, Stephen G. Yoder, Senior Counsel, Washington, DC), for amicus curiae Securities and Exchange Commission, in support of Appellant.) (Kate Comerford Todd, U.S. Chamber Litigation Center, Inc., Washington, DC, Eugene Scalia, Gibson, Dunn & Crutcher LLP, Washington, DC (Rachel E. Mondel, Gabrielle Levine on the brief) for amicus curiae The Chamber of Commerce of the United States of America, in support of the Appellees.) 2
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page3 of 29 JON O. NEWMAN, Circuit Judge. This appeal presents the recurring issue of statutory interpretation that arises when express terms in one provision of a statute are arguably in tension with language in another provision of the same statute. The Supreme Court recently encountered a similar issue when it interpreted a provision in the Patient Protection and Affordable Care Act in Burwell v. King, 135 S. Ct. 2480 (2015). In the pending case, the tension occurs within the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ( Dodd-Frank ). Pub. L. No. 111-203, Title IX, 922(a), 124 Stat. 1376, 1841 (2010), which added section 21F to the Exchange Act of 1934, codified at 15 U.S.C. 78u-6. The relevant administrative agency, the Securities and Exchange Commission ( SEC or Commission ), has issued a regulation endeavoring to harmonize the provisions that are in tension. Plaintiff-Appellant Daniel Berman appeals from the December 8, 2014, judgment of the District Court for the Southern District of New York (Gregory H. Woods, District Judge), dismissing on motion for summary judgment his suit against Defendants-Appellees Neo@Ogilvie LLC and WPP Group USA, Inc. See Berman v. Neo@Ogilvy LLC, No. 1:14-cv-523-GHW- 3
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page4 of 29 SN, 2014 WL 6860583 (S.D.N.Y. Dec. 5, 2014). We conclude that the pertinent provisions of Dodd-Frank create a sufficient ambiguity to warrant our deference to the SEC s interpretive rule, which supports Berman s view of the statute. We therefore reverse and remand for further proceedings. Background The statutory and regulatory provisions. Section 21F, added to the Exchange Act by Dodd-Frank, is captioned Securities Whistleblower Incentives and Protection. 15 U.S.C. 78u-6. Subsection 21F(b) provides the incentives by directing the SEC to pay awards to individuals whose reports to the Commission about violations of the securities laws result in successful Commission enforcement actions. See 15 U.S.C. 78u-6(b). Subsection 21F(h) provides the protection by prohibiting employers from retaliation against employees for reporting violations. Id. 78u-6(h). This appeal concerns the relationship between the definition of whistleblower in section 21F and one subdivision of the provision prohibiting retaliation, which was added by a conference committee just before final passage. Subsection 21F(a), the definitions subsection of section 21F, contains subsection 21F(a)(6), which defines 4
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page5 of 29 whistleblower to mean any individual who provides... information relating to a violation of the securities laws to the Commission.... Id. 78u-6(a)(6) (emphasis added). Subsection 21F(h), the retaliation protection provision, contains subsection 21F(h)(1)(A), which provides: (A) In General No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower (i) in providing information to the Commission in accordance with this section; (ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or (iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this chapter [i.e., the Exchange Act], including section 78j-1(m) of this title [i.e., Section 10A(m) of the Exchange Act], section 1513(e) of Title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission. Id. 78u-6(h)(1)(A). The Sarbanes-Oxley Act of 2002 ( Sarbanes-Oxley ), Public L. No. 107-204, 116 Stat. 475 (2002), which is crossreferenced by subdivision (iii) of subsection 21F(h)(1)(A) of Dodd-Frank, includes several provisions concerning the 5
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page6 of 29 internal reporting of securities law violations or improper practices. For example, section 307 of Sarbanes-Oxley requires the SEC to issue rules requiring an attorney to report securities law violations to the chief legal counsel or chief executive officer of the company. See 15 U.S.C. 7245(1). Section 301 of Sarbanes-Oxley added to the Exchange Act section 10A(m)(4), requires the SEC by rule to direct national securities exchanges and national securities associations to require audit committees of listed companies to establish internal company procedures allowing employees to submit complaints regarding auditing matters. This section is not codified. Section 806(a) of Sarbanes-Oxley prohibits a publicly traded company from retaliating against an employee who provides information concerning securities law violations to, among other, a federal regulatory or law enforcement agency, a member of Congress, or a person with supervisory authority over the employee. 18 U.S.C. 1514A(a)(1). This appeal concerns the arguable tension between the definitional subsection, subsection 21F(a)(6), which defines whistleblower to mean an individual who reports violations to the Commission, and subdivision (iii) of subsection 6
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page7 of 29 21F(h)(1)(A), which, unlike subdivisions (i) and (ii), does not within its own terms limit its protection to those who report wrongdoing to the SEC. On the contrary, subdivision (iii) expands the protections of Dodd-Frank to include the whistleblower protection provisions of Sarbanes-Oxley, and those provisions, which contemplate an employee reporting violations internally, do not require reporting violations to the Commission. In statutory terms, the issue presented is whether the whistleblower definition in subsection 21F(a)(6) of Dodd- Frank applies to subdivision (iii) of subsection 21F(h)(1)(A). In operational terms, the issue is whether an employee who suffers retaliation because he reports wrongdoing internally, but not to the SEC, can obtain the retaliation remedies provided by Dodd-Frank. The SEC believes he can. In 2011, using its authority to issue rules implementing section 21F, see 15 U.S.C. 78u-6(j), the SEC promulgated Exchange Act Rule 21F-2, 17 C.F.R. 240.21F-2, which provides: (a) Definition of a whistleblower. (1) You are a whistleblower if, alone or jointly with others, you provide the Commission with information pursuant to the procedures set forth in 240.21F 9(a) of this chapter, and the 7
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page8 of 29 information relates to a possible violation of the Federal securities laws (including any rules or regulations thereunder) that has occurred, is ongoing, or is about to occur. A whistleblower must be an individual. A company or another entity is not eligible to be a whistleblower. (2) To be eligible for an award, you must submit original information to the Commission in accordance with the procedures and conditions described in 240.21F 4, 240.21F 8, and 240.21F 9 of this chapter. (b) Prohibition against retaliation. (1) For purposes of the anti-retaliation protections afforded by Section 21F(h)(1) of the Exchange Act (15 U.S.C. 78u 6(h)(1)), you are a whistleblower if: (i) You possess a reasonable belief that the information you are providing relates to a possible securities law violation (or, where applicable, to a possible violation of the provisions set forth in 18 U.S.C. 1514A(a)) that has occurred, is ongoing, or is about to occur, and; (ii) You provide that information in a manner described in Section 21F(h)(1)(A) of the Exchange Act (15 U.S.C. 78u 6(h)(1)(A)). (iii) The anti-retaliation protections apply whether or not you satisfy the requirements, procedures and conditions to qualify for an award. 1 1 Just recently, on August 4, 2015, the SEC issued a release to clarify that, for purposes of the employment retaliation protections provided by Section 21F of the Securities Exchange Act of 1934 ( Exchange Act ), an individuals s status as a whistleblower does not depend on adherence to the reporting procedures specified in Exchange 8
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page9 of 29 Echoing section 21F(a)(6) of Dodd-Frank, subsection 21F-2(a)(1) of Exchange Act Rule 21F-2 defines a whistleblower as a person who provide[s] the Commission with specific information. 17 C.F.R. 240.21F-2(a)(1). However, subsection 21F-2(b) of the Rule, headed Protection against retaliation, provides, in subdivision 21F-2(b)(ii) that, for purposes of the retaliation protections of Dodd- Frank, a person is a whistleblower if the person provide[s] specified information in a manner described in the retaliation protection provisions of Dodd-Frank, which includes the cross-reference in subdivision (iii) to the reporting provisions of Sarbanes-Oxley. Id. 240.21F- 2(b)(ii). Those provisions, as explained above, protect an employee who reports internally without reporting to the Commission. As the SEC explained in its release accompanying issuance of Exchange Rule 21F 2, the statutory antiretaliation protections [of Dodd-Frank] apply to three Act Rule 21F-9(a) [specifying procedures to be followed to qualify for a whistleblower award], but is determined solely by the terms of Exchange Act Rule 21F2(b)(1). Interpretation of the SEC s Whistleblower Rules Under Section 21F of the Securities Exchange Act of 1934, SEC Release No. 34-75592, 2015 WL 4624264 (F.R.) (Aug. 4, 2015). 9
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page10 of 29 different categories of whistleblowers, and the third category [described in subdivision (iii) of subsection 21F(h)(1)(A)] includes individuals who report to persons or governmental authorities other than the Commission. Securities Whistleblower Incentives and Protections, Release No. 34-64545, 76 Fed. Reg. 34300-01, at *34304, 2011 WL 2293084 (F.R.) (June 13, 2011) (emphasis added). So the more precise issue in the pending appeal is whether the arguable tension between the definitional section of subsection 21F(a)(6) and subdivision (iii) of subsection 21(F)(h)(1)(A) creates sufficient ambiguity as to the coverage of subdivision (iii) to oblige us to give Chevron deference to the SEC s rule. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The pending lawsuit. Plaintiff-Appellant Daniel Berman was the finance director of Defendant-Appellee Neo@Ogilvy LLC ( Neo ) from October 2010 to April 2013. He was responsible for Neo s financial reporting and its compliance with Generally Accepted Accounting Principles ( GAAP ), as well as internal accounting procedures of Neo and its parent, Defendant-Appellee WPP Group USA, Inc. ( WPP ). Neo 10
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page11 of 29 is a media agency that provides a range of digital and direct media services. In January 2014, Berman sued Neo and WPP, alleging that he was discharged in violation of the whistleblower protection provisions of section 21F of Dodd-Frank and in breach of his employment contract. According to the allegation of the complaint, while employed at Neo, he discovered various practices that he alleged amounted to accounting fraud. He also alleged that these practices violated GAAP, Sarbanes-Oxley, and Dodd-Frank, and that he had reported these violations internally. A senior officer at Neo became angry with him, and he was terminated as a result of his whistleblower activities in April 2013. In August 2013 he reported his allegations to the WPP Audit Committee. While employed at Neo and for about six months after he was fired, Berman did not report any allegedly unlawful activities to the SEC. In October 2013, after the limitations period on one of his Sarbanes-Oxley claims had ended, he provided information to the Commission. Defendants motion to dismiss the complaint was referred to Magistrate Judge Sarah Netburn. She filed a 11
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page12 of 29 Report & Recommendation ( R&R ) recommending that Berman was entitled to be considered a whistleblower under Dodd-Frank because of the retaliation protection of subdivision (iii) of subsection 21F(h)(A)(1), unrestricted by the definition of whistleblower in subsection 21F(a)(6). However, the R&R also recommended that the retaliation claims be dismissed for legal insufficiency, without prejudice to amendment, and that the contracts claims be dismissed with prejudice. The District Court, disagreeing with the Magistrate Judge, relied on the definition of whistleblower in subsection 21F(a)(6) and ruled that subsection 21F(h)(1)(A), including subdivision (iii), provided whistleblower protection only to those discharged for reporting alleged violations to the Commission. The District Court dismissed the Dodd-Frank claims because Berman had been terminated long before he reported alleged violations to the SEC. The District Court also rejected the contract claims and dismissed the entire complaint. See Berman, 2014 WL 6860583, at *6. Berman s appeal challenges only the dismissal of his Dodd-Frank claim. 12
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page13 of 29 Discussion The statutory interpretation issue posed by this case is not as stark, and hence not as easily resolved, as that encountered in somewhat similar cases. 2 In Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014), for example, the express language of one clause of a subsection of a statute was contradicted by express language in another clause of 2 We start by posing the issue as one of statutory construction because Berman sued for violation of Dodd- Frank. If we find the statute ambiguous, we will consider whether the SEC s regulation is a reasonable interpretation of the statute warranting Chevron deference. The SEC begins its argument by asserting that [t]he interpretation of a statute by a regulatory agency charged with its administration is entitled to deference if it is a permissible construction of the statute. Brief for SEC at 17 (citing Haekal v. Refco, Inc., 198 F.3d 37, 41 (2d Cir. 1999)). Then the SEC points out that consideration of whether an agency interpretation is permissible requires two steps: first, considering whether there is an unambiguously expressed intent of Congress, Chevron, 467 U.S. at 843, on the precise issue in question, id. at 842, and, second, if the statute is silent or ambiguous, considering whether the agency s interpretation is based on a permissible construction of the statute, id. at 843. Although our approach and the SEC s both require initial interpretation of the statute, the reasons for that inquiry differ. We start with the statute because that is the basis for Berman s claim. His complaint does not mention the SEC s rule. The SEC starts with the statute to determine whether its regulation is entitled to Chevron deference. Chevron, in which the two-step analysis was outlined, was a suit challenging the validity of an agency regulation. 13
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page14 of 29 the same subsection. See id. at 2207 ( [T]he two halves of [8 U.S.C.] 1153(h)(3) face in different directions. ). In Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), application of the express terms of a statute to the facts of a case yielded a result so unlikely to have been intended by Congress that the Supreme Court did not apply those terms. 3 See id. at 472 (declining to apply to a church s contract with a British pastor a prohibition on contracting to import an alien to perform labor of any kind). Closer to our case is the issue the Supreme Court recently confronted in Burwell v. King. There, four words of one provision expressly provided that income tax subsidies were available to those who purchased health insurance on exchanges established by a state, and the argument made to the Court was that the operation of the entire statute would be undermined if tax subsidies were not also available to those who purchased health insurance on 3 See also Yates v. United States, 135 S. Ct. 1074, 1079 (2015) (declining to apply literal meaning of tangible object as used in Sarbanes-Oxley to a fish); Bond v. United States, 134 S. Ct. 2077, 2091 (2014) (declining to apply express terms of definition of chemical weapon to toxic chemicals spread by a jilted wife on property of her husband s lover). 14
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page15 of 29 exchanges established by the federal government. A closely divided Court accepted that argument and interpreted the Affordable Care Act as a whole to provide income tax subsidies to those who purchased health insurance on federal exchanges. The interpretation issue facing the Supreme Court in King was far more problematic than the issue we face here. In King the issue was whether the statutory phrase established by the State should be understood to mean established by the State or by the Federal Government. In our case, the statutory provision relied on by the Appellees and our dissenting colleague contains the phrase provide... to the Commission, but the issue is not whether that phrase means something other than what it literally says. 4 Instead, the issue is whether the statutory provision applies to another provision of the statute, or, more precisely, whether the answer to that question is sufficiently unclear to warrant Chevron deference to the Commission s regulation. 4 We do not doubt that provide... to the Commission means provide... to the Commission. 15
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page16 of 29 In our case there is no absolute conflict between the Commission notification requirement in the definition of whistleblower and the absence of such a requirement in both subdivision (iii) of subsection 21F(h)(1)(A) of Dodd- Frank and the Sarbanes-Oxley provisions incorporated by subdivision (iii). An employee who suffers retaliation after reporting wrongdoing simultaneously to his employer and to the SEC is eligible for Dodd-Frank remedies and those provided by Sarbanes-Oxley. Subdivision (iii) assures him the latter remedies, and his simultaneous report to the SEC assures him that he will not have excluded himself from Dodd-Frank remedies. Indeed, it was the possibility of simultaneous complaints to both the employer and the Commission that persuaded the Fifth Circuit to insist that the Commission notification requirement be observed by all employees who seek Dodd-Frank remedies for whistleblower retaliation. See Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 627-28 (5th Cir. 2013). 5 5 By using the Fifth Circuit s example of simultaneous reporting to an employer and to the Commission, we recognize that a literal application of the definition of whistleblower to subdivision (iii) would also benefit those who reported to the Commission very soon after reporting to an employer, soon enough to do so before the employer retaliated by discharging the employee for the internal reporting (assuming the employer terminated because of both acts of reporting). 16
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page17 of 29 Although the simultaneous employer/commission reporting example avoids an absolute contradiction between the Commission reporting requirement of the whistleblower definition and subdivision (iii)'s incorporation of Sarbanes-Oxley remedies, a significant tension within subsection 21F nevertheless remains. Applying the Commission reporting requirement to employees seeking Sarbanes-Oxley remedies pursuant to subdivision (iii) would leave that subdivision with an extremely limited scope for several reasons. First, although there may be some potential whistleblowers who will report wrongdoing simultaneously to their employer and the Commission, they are likely to be few in number. Some will surely feel that reporting only to their employer offers the prospect of having the wrongdoing ended, with little chance of retaliation, whereas reporting to a government agency creates a substantial risk of retaliation. Second, and more significant, there are categories of whistleblowers who cannot report wrongdoing to the Commission until after they have reported the wrongdoing to their employer. Chief among these are auditors and attorneys. 17
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page18 of 29 Auditors are subject to subsection 78j-1 of the Exchange Act, 15 U.S.C. 78j-1, which is one of the provisions of Sarbanes-Oxley, expressly cross-referenced by subdivision (iii). Subsection 78j-1(b)(1)(B) requires an auditor of a public company, under certain circumstances, to inform the appropriate level of the management of illegal acts, unless they are inconsequential. See 15 U.S.C. 78j- 1(b)(1)(B). Subsection 78j-1(b)(2) requires an auditor to report to the board of directors if the company does not take reasonable remedial action after the auditor s report to management. See id. 78j-1(b)(2). Significantly to our case, subsection 78j-1(b)(3)(B) permits an auditor to report illegal acts to the Commission only if the board or management fails to take appropriate remedial action. See id. 78j-1(b)(3)(B). Thus, if subdivision (iii) requires reporting to the Commission, its express cross-reference to the provisions of Sarbanes-Oxley would afford an auditor almost no Dodd-Frank protection for retaliation because the auditor must await a company response to internal reporting before reporting to the Commission, and any retaliation would almost always precede Commission reporting. Attorneys are subject to both section 307 of Sarbanes- Oxley, 15 U.S.C. 7245, and the SEC s Standards of 18
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page19 of 29 Professional Conduct 6 ( Attorney Standards ), 17 C.F.R. 205.1-7, and subdivision (iii) cross-references any other law, rule, or regulation subject to the jurisdiction of the Commission. Subsection 7245(1) requires attorneys to report material violations of the securities laws to the chief legal counsel or chief executive officer ( CEO ) of a public company, and subsection 7245(2) requires attorneys to report such violations to the audit or other appropriate committee of the board of directors if the counsel or CEO does not appropriately respond to the attorney s internal reporting. 15 U.S.C. 7245(1), (2). Again significantly to our case, the SEC s Rule 3 of its Attorney Standards contemplates an attorney reporting to the Commission only after internal reporting, see 17 C.F.R. 205.3(d)(2), explicitly recognizing that by reporting internally first an attorney does not reveal client confidences or secrets or privileged or otherwise protected information related to the attorney s representation of the issuer, id. 205.3(b)(1). Like auditors, attorneys would gain little, if any, Dodd- Frank protection if subdivision (iii), despite crossreferencing Sarbanes-Oxley provisions protecting lawyers, 6 The full title is Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer. 17 C.F.R. 205.1. 19
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page20 of 29 protected only against retaliation for reporting to the Commission. Thus, apart from the rare example of simultaneous (or nearly simultaneous) 7 reporting of wrongdoing to an employer and to the Commission, there would be virtually no situation where an SEC reporting requirement would leave subdivision (iii) with any scope. In light of these realities as to the sharply limiting effect of a Commission reporting requirement on all whistleblowers seeking the Sarbanes-Oxley remedies promised by Dodd-Frank for those who report wrongdoing internally, the question becomes whether Congress intended to add subdivision (iii) to subsection 21F(h)(1)(A) only to achieve such a limited result. To answer that question we would normally look to the legislative history of subdivision (iii) to learn what Congress, or the relevant committee, had sought to accomplish by adding subdivision (iii). See, e.g., Vincent v. The Money Store, 736 F.3d 88, 101 n.10 (2d Cir. 2013). Unfortunately that inquiry yields nothing. What became subdivision (iii) of subsection 20F(h)(1)(A) was not in 7 See footnote 5, supra. 20
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page21 of 29 either version of Dodd-Frank that was passed by the House and the Senate prior to a conference. 8 After these versions went to conference, the House Conferees prepared a conference base text to serve as the basis for resolution of differences by the Conference Committee. Subdivision (iii) first saw the light of day in that conference base text when it was added to follow subdivisions (i) and (ii) of subsection 20F(h)(1)(A), both of which had been in the Senate version. Unfortunately, there is no mention of the addition of subdivision (iii), 8 As originally submitted by the Administration on July 22, 2009, the Financial Services Oversight Council Act of 2009" proposed adding section 21F to the Exchange Act. The Administration s proposal included subsection 21F(g)(1)(A), which entitled an employee to be made whole if discharged for providing information as provided elsewhere in the bill. As passed by the House of Representative on Dec. 11, 2009, the Wall Street Reform and Consumer Protection Act of 2009" also proposed adding section 21F to the Exchange Act. The House version of section 21F included subsection 21F(g)(1)(A), which prohibited retaliation against an employee for providing information to the Commission as provided elsewhere in the bill, and subsection 21F(g)(4), which defined whistleblower as one or more individuals who submit information to the Commission as provided in section 21F. See H.R. 4173, 111th Cong., 1st Sess. (2009). As passed by the Senate on May 20, 2010, the Restoring American Financial Stability Act of 2010" also proposed adding section 21F to the Exchange Act. The Senate version of section 21F included subsection 21F(a)(7), which copied the definition of whistleblower from H.R. 4173, and included in subsection 21F(h)(1)(A) the language that would become subdivisions (i) and (ii) of subsection 21F(h)(1)(A) of Dodd-Frank. See H.R. 4173, 111th Cong., 2d Sess. (2010). 21
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page22 of 29 much less its meaning or intended purpose, in any legislative materials not in the conference report nor the final passage debates on Dodd-Frank in either the House or the Senate. The Joint Explanatory Statement of the Committee of Conference explains only that [t]he subtitle [Subtitle B of Title IX] further enhances incentives and protections for whistleblowers providing information leading to successful SEC enforcement actions. H. Rep. No. 111-517, at 870 (2009-10) (Conf. Rep.). Subdivision (iii) is, like Judge Friendly s felicitous characterization of the Alien Tort Act, a kind of legal Lohengrin;... no one seems to know whence it came. ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), abrogated on other grounds by Morrison v. National Australia Bank, 561 U.S. 247 (2010). Other courts confronting the issue of whether the arguable tension between subsection 21F(a)(6) and subdivision (iii) of subsection 21F(h)(1)(A) warrants Chevron deference to Exchange Rule 21F-2 have reached conflicting results. The Fifth Circuit in Asadi, 720 F.3d at 620, and the District Court decision that Asadi affirmed, Asadi v. G.E. Energy (USA), LLC, Civ. Action No. 4:12-345, 2012 WL 2522599 (S.D. Tex. Jun. 28, 2012), both ruled the subsection 21F(a)(6) definition of whistleblower 22
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page23 of 29 controlling. Three other district courts have followed Asadi. See Verfuerth v. Orion Energy Systems, Inc., 65 F. Supp. 640, 643-46 (E.D. Wis. 2014); Banko v. Apple Inc., 20 F. Supp. 3d 749, 756-57 (N.D. Cal. 2013); Wagner v. Bank of America Corp., No. 12-cv-00381-RBJ, 2013 WL 3786643, at *4- *6 (D. Colo. July 19, 2013). On the other hand, a far larger number of district courts have deemed the statute ambiguous and deferred to the SEC s Rule. See Somers v. Digital Realty Trust, Inc., No. C- 14-5180 EMC, 2015 WL 2354807, at *4-*12 (N.D. Cal. May 15, 2015); Yang v. Navigators Group, Inc., 18 F. Supp. 3d 519, 533-34 (S.D.N.Y. 2014); Khazin v. TD Ameritrade Holding Corp. No. 13-4149 (SDWQ)(MCA), 2014 WL 940703, at *3-*6 (D.N.J. Mar. 11, 2014); Azim v. Tortoise Capital Advisors, LLC, No. 13-2267-KHV, 2014 WL 707235, at *2-3 (D. Kan. Feb. 24, 2014); Ahmad v. Morgan Stanley & Co., 2 F. Supp. 3d 491, 495-97 n.5 (S.D.N.Y 2014); Rosenblum v. Thomson Reuters (Mkts.) LLC, 984 F. Supp. 2d 141, 146-49 (S.D.N.Y. 2013); Murray v. UBS Securities, LLC, No. 12-5914, 2013 WL 2190084, at *4 (S.D.N.Y. May 21, 2013); Ellington v. Giacoumakis, 977 F. Supp. 2d 42, 44-46 (D. Mass. 2013); Genberg v. Porter, 935 F. Supp. 2d 1094, 1106-07 (D. Colo. 2013); Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986, 995 23